Hammett v. Hodges

• Decision Date: 15 July 1912
• Citation: 149 S.W. 667,104 Ark. 510
• Parties: HAMMETT v. HODGES
• Court: Arkansas Supreme Court

149 S.W. 667

104 Ark. 510

HAMMETT v. HODGES

Supreme Court of Arkansas

July 15, 1912

Appeal from Pulaski Circuit Court, Second Division; F. Guy Fulk Judge; affirmed.

STATEMENT BY THE COURT.

The appellants petitioned the circuit court for an injunction against the appellee, setting up that the Secretary of State Earle W. Hodges, is preparing to publish and submit to the voters for adoption or rejection an act to prohibit the manufacture, sale or giving away in the State of Arkansas of any alcohol, or any spirituous, ardent, malt, vinous or fermented liquors, or any compound or preparation thereof commonly called tonics, bitters or medicated liquors, which measure in full they set forth in their petition. They set up that the appellee, unless restrained, will publish and submit the measure. They further allege that "the said Earle W Hodges, Secretary of State, has not accepted, filed or considered a petition containing 8 per cent. of the legal voters of the State upon a basis of the whole number of votes cast for the office of Governor in the State of Arkansas at the regular general election last preceding the filing of said petition, but state the facts to be that there were filed with the Secretary of State, from time to time, upon different dates, different petitions, all being alike in form and relating to the same subject-matter, but no one of which contained a sufficient number of signatures to constitute 8 per cent. of the legal voters aforesaid, though all of such petitions taken together constitute such per cent."

They allege "that the said petition and measure proposed to be initiated thereby are contrary to and in conflict with the provisions of the act of the General Assembly of the State of Arkansas" approved June 30, 1911, entitled "An Act to provide for carrying into effect the Initiative and Referendum powers reserved by the people in Amendment No. 10 to the Constitution of the State of Arkansas on general, county and municipal legislation." That the act proposed is in conflict with the enabling act in that it "undertakes to initiate a measure to set aside and revoke the three-mile petition orders made by the county courts of this State, prohibiting the sale of liquor as provided under sections 5128 to 5132 of Kirby's Digest, and to set aside and revoke local option liquor laws, providing methods of determining whether the sale of intoxicating liquors shall be prohibited in any county, city, town or township.

To appellant's petition a demurrer was interposed, which was sustained, and the petition dismissed, and this appeal has been duly prosecuted.

Judgment affirmed.

Mehaffy, Reid & Mehaffy, for appellants.

1. The enabling act provides: "No petition for the initiative shall be accepted, filed or considered by the Secretary of State unless the same shall contain 8 per cent. of the legal voters, etc." Enabling Act, § 12. This provision of the act is not met by the receipt and filing from time to time by the Secretary of State of fragmentary petitions, no one of which at the time it was received contained a sufficient number of names, and he is not authorized to hold such petitions until a sufficient number have been filed to cause the aggregate number of names thereon to amount to 8 per cent. of the legal voters, and then treat them as one petition, and as filed upon a particular date. See also section 10 of the act; 109 P. 309.

2. The proposed act would render inoperative the other provisions of the law of the State by which the question whether the sale of intoxicating liquor shall be prohibited in any county etc., is determined. Act, § 3; 103 Ark. 48.

Hal L. Norwood, Attorney General, and William H. Rector, Assistant, for appellee.

1. The objection raised by the appellants to the petition is merely technical. It is conceded that the petitions on file contain more names of legal voters than the 8 per cent. required by law. It is also a fact that the several petitions are identical in form and substance. Until the petitions received by the Secretary of State aggregate 8 per cent. of the legal voters, that official was powerless to act; but so soon as the required 8 per cent. was on file, a legal petition existed, and he could proceed in his duty relative to the initiation of laws.

The fact that the petition was divided into separate headings for the purpose of circulating it does not detract from its validity as a whole; and if the required number of signatures are received and filed within the time provided in the enabling act, it is a valid petition. 45 S.W. 459, 460; 130 Ky. 444; 73 Ark. 270; 61 Ark. 477; 72 Ark. 187.

2. If the proposed law is a violation of certain language in section 3 of the enabling act, such offending language is unconstitutional, and should be disregarded.

The Legislature has no authority to limit the powers of the people as reserved to them in the Amendment.

OPINION

WOOD, J., (after stating the facts).

1. In computing the number (towit, 8 per cent.) of the legal voters required by Amendment No. 10 to the Constitution to initiate any measure for adoption or rejection by the people, can the Secretary of State take the aggregate of signatures to petitions on separate sheets, filed upon different dates, all however being alike in form and relating to the same subject-matter? In other words, do the petitioners to initiate laws under Amendment No. 10 all have to sign the petition as contained in one sheet filed with the Secretary of State, or may the petition be made up of names signed to different sheets and filed on different dates, all of the separate sheets being in the same form and relating to the same subject-matter? Will the number as ascertained by adding the various names on the different sheets thus presented to and filed with the Secretary of State authorize him to publish and submit to the voters of the State for adoption or rejection the act thus proposed?

Amendment No. 10 provides that "not more than 8 per cent. of the legal voters of the State shall be required to propose any measure," and the enabling act provides that "8 per cent. of the legal voters of the State may, at any time more than four months before any regular general election, propose any measure of general application to the State." Sec. 3 of Act No. 2 Extraordinary Session, Acts 1911, p. 585.

The enabling act sets forth the form of the petition (See section 4 of that act, supra).

We are of the opinion that the requisite number may be ascertained by adding together the names of the legal voters signed to the separate sheets that have been filed with the Secretary of State within the time prescribed by the act where these separate sheets, embodying the petition of the signers thereto, are in the form prescribed by the statute, and all containing the same subject-matter,...